Appeals FAQs

Oct 13, 2021 | Appeals, Resources | 0 comments

Will my union support an appeal?

Unions will only support an appeal if there is a 51% chance of success. This is understandable as they only have finite resources and in theory should have done everything possible to get you the right outcome at your hearing.

I can’t afford representation.

If your union won’t support an appeal, or you didn’t have union cover the prospect of funding an appeal can be quite worrying. The reality is as a self litigant the costs are relatively low. All you will have to pay for is the court fee, travel to the venue for the appeal hearing and your time in preparing your case. Have a look here for more information about self litigating ( or being a litigant in person )

Don’t be scared to be a litigant in person – the courts will help you as they appreciate you are not legally qualified and so will not know your way around the court system or understand how the process works. However you will be expected to do your research, be prepared and not waste the courts time.

What happens if I lose?

If you lose your appeal the NMC will apply to the court to be awarded costs. They can only claim back their legal costs for the preparation and presentation of the appeal, nothing before. However as lawyers their costs are not cheap. A recent case we were involved in saw the NMC legal team apply for costs  – however the court did not award these as they appreciated the nurse was already financially compromised to date and there was no benefit to make this situation worse.

An example of costs claimed by the NMC from 2019

 

What happens if I win?

You can claim back your costs including travel to and from the venue and to lodge your appeal, postage etc. You can also claim cost of preparing your appeal – however it isn’t as much as the NMC as you are a non qualified person. You can claim £19 / hr for both yourself and any other persons assisting in your case preparation.

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My Strike off was 2 years ago but I think I have new evidence. Can I apply for restoration before the 5 year period?

Kings View successfully overturned a nurse’s striking off order using an NMC internal mechanism for review. This is thought to be the first application in many years.

The nurse in question engaged in the original fitness to practise hearing, however the Panel found that she lacked insight and imposed a suspension order for 9 months. The nurse did not attend the review of the suspension order and failed to engage at all with the NMC and as a result was then struck off.

Kings View applied on the grounds that there was relevant evidence which was not before the review panel, and which would have had an important influence on the case. The NMC conceded the point, and a new review panel took place. Under Article 33, this review panel heard the case using the same process as if this was an application for restoration. The test for restoration being whether the applicant is a fit and proper person to practise in the profession.

The right to request a review is laid down in the Nursing and Midwifery Order 2001 Article 30, paragraph 7 which outlines:

“Where new evidence relevant to a striking-off order becomes available after the making of the order, the Fitness to Practise Committee may review it and article 33(4) to (8) shall apply as if it were an application for restoration made under that Article.”

When the nurse, midwife or nursing associate makes an application to review a striking-off order, the NMC will consider the merits of the application. If the evidence submitted as part of the application is evidence that was not available at the time of the original hearing and could have made a real difference to the panel’s final decision, then the NMC will refer the application to a Fitness to Practise Committee and that hearing will follow the same procedure as that of a restoration hearing.

The general principles regarding consideration of fresh evidence were considered in the case of the GMC v Adeogba [2016] EWCA Civ 162 at para 24. The Court of Appeal examined the fresh evidence principles in the context of regulatory proceedings with discussion of the well-established principles explained in Ladd v Marshall [1954] 1WLR 1489 Lord Denning:

First, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trials.

Secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive.

Thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.

 

 

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